James v. Holder , 698 F.3d 24 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-2500
JOSEPH ALEXANDER JAMES,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Selya and Dyk,*
Circuit Judges.
Glenn T. Terk for petitioner.
Anthony C. Payne, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Department of Justice, with
whom Stuart Delery, Acting Assistant Attorney General, Civil
Division, and David V. Bernal, Assistant Director, were on brief
for respondent.
October 19, 2012
*
Of the Federal Circuit, sitting by designation.
BOUDIN, Circuit Judge. Joseph Alexander James, a native
and citizen of Jamaica, was admitted to the United States on a
visitor visa in January 1976; his status was adjusted to that of
lawful permanent resident in July of the following year. In June
1997, he was arrested in West Hartford, Connecticut, and charged
under state statutes related to the possession and sale of drugs.
James moved to suppress evidence against him, and the proceedings
ultimately reached the Connecticut Supreme Court. State v. James,
802 A.2d 820 (Conn. 2002).
On October 29, 2003, by agreement with the state, James
entered a conditional plea of nolo contendere to two counts: one
charged a violation of Conn. Gen. Stat. Ann. § 21a-277(b) (West
2003), a broad drug offenses statute covering inter alia the
manufacture, distribution, possession with intent to sell, and sale
of specified controlled substances including marijuana; the other
charged criminal attempt to possess with intent to sell, id. § 53a-
49 (defining conditions for attempt charges).
Pursuant to his plea, James was sentenced to 42 months in
jail. Thereafter, he pursued on appeal a Miranda waiver issue
which his plea agreement had reserved. The appeal failed, State v.
James, 887 A.2d 923, 929 (Conn. App. Ct. 2006), and in November
2010, the Department of Homeland Security began removal proceedings
against James, charging that he had been convicted of illicit
trafficking in a controlled substance, which is an aggravated
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felony under the Immigration and Nationality Act ("INA"), and that
he had been convicted of violating a state law relating to a
controlled substance.1
On January 28, 2011, James, represented by counsel, filed
a responsive pleading seeking to terminate the removal proceedings
or, in the alternative, to cancel removal pursuant to INA §
240A(a), 8 U.S.C. § 1229b(a). Section 240A(a) allows the Attorney
General to cancel removal in the case of a non-citizen who (1) has
been lawfully admitted as a permanent resident for at least five
years, (2) has resided in the United States continuously for seven
years after admission, and (3) has never been convicted of an
aggravated felony. INA § 240A(a), 8 U.S.C. § 1229b(a).
Regardless of the ground for removal, a non-citizen
seeking discretionary cancellation must submit an application (on
a form known as Form EOIR-42), see 8 C.F.R. § 1240.20 (2012), and
"[i]f an application . . . is not filed within the time set by the
Immigration Judge, the opportunity to file that
application . . . shall be deemed waived." 8 C.F.R. § 1003.31(c).
1
See INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2006)
("aggravated felony" defined to include "illicit trafficking in a
controlled substance"); INA § 237(a)(2)(A)(iii), 8 U.S.C. §
1227(a)(2)(A)(iii) (aggravated felony as ground for removal); INA
§ 237(a)(2)(B)(I); 8 U.S.C. § 1227(a)(2)(B)(I) (conviction for
violation of "any law or regulation of a State . . . relating to a
controlled substance," except for "a single offense involving
possession for one's own use of 30 grams or less of marijuana," as
ground for removal); see also INA § 239(a)(3), 8 U.S.C. §
1229b(a)(3) (alien "convicted of any aggravated felony" not
eligible for cancellation of removal).
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James never submitted a Form EOIR-42, and does not contest the
government's assertion that he has let the deadline pass.
On March 22, 2011, in advance of the individual calendar
hearing, the immigration judge issued a written decision denying
James' motion to terminate and indicating that James was removable
both on the ground that he had been convicted of illicit
trafficking--an aggravated felony--and also of an offense under a
state law relating to a controlled substance. The IJ reaffirmed
this decision at the April 6 individual calendar hearing, where he
ordered James to be removed to Jamaica.
James sought review from the Board of Immigration Appeals
("BIA"); his brief to that body again made no mention of any
application for cancellation. On August 15, 2011, the BIA issued
a two-page written decision in which it affirmed the immigration
judge's findings of removability on both grounds and dismissed
James' appeal. James then sought review, albeit in the wrong
circuit, and after transfer to this court the challenge to the
BIA's order is now before us.
A conviction for "illicit trafficking in a controlled
substance" is an aggravated felony warranting removal and
precluding cancellation. See note 1, above. The Connecticut drug
statute under which James was convicted, section 21a-277(b),
states, in relevant part, that:
Any person who manufactures, distributes,
sells, prescribes, dispenses, compounds,
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transports with intent to sell or dispense,
possesses with intent to sell or dispense,
offers, gives or administers to another person
any controlled substance, except a narcotic
substance, or a hallucinogenic substance other
than marijuana, except as authorized in this
chapter, may, for the first offense, be fined
not more than twenty-five thousand dollars or
be imprisoned not more than seven years or be
both fined and imprisoned . . . .
Conn. Gen. Stat. Ann. § 21a-277(b).
Any controlled substance within the meaning of INA §
101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), is also automatically a
controlled substance under the Connecticut statute. Conn. Gen.
Stat. Ann. § 21a-243(g); cf. 18 U.S.C. § 924(c)(2); 21 U.S.C. §
812. Although the state can choose to make other drugs subject to
its statute, see Conn. Gen. Stat. Ann. § 21a-243(c), James does not
argue that it has in fact done so, cf. Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007), nor have we found any evidence that it
has done so.
The more difficult issue is whether James' conviction
under section 21a-277(b) was for an offense that would also
comprise "trafficking"--which is true of some but not necessarily
all of the subordinate offenses listed in the Connecticut statute.
The INA (through a series of cross-references) defines "illicit
trafficking" to include the manufacture, distribution and
dispensing of a controlled substance, as well as possession with
intent to do any of these; INA § 101(a)(43)(B), 8 U.S.C. §
1101(a)(43)(B), cf. 18 U.S.C. § 924(c)(2); 21 U.S.C. § 841(a); but
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this definition does not appear to encompass offers and gifts,
which are criminalized under the Connecticut statute.2
Accordingly, the IJ in James' case found that a
conviction under section 21a-277(b) is not categorically an
aggravated felony in the sense that each and every conviction under
the state statute would also comprise drug trafficking as defined
by federal law. The one other circuit to consider the question has
reached the same conclusion, see Santos v. Att'y Gen. of the United
States, 352 Fed. App'x 742, 744 (3d Cir. 2009).
Thus, under the Taylor-Shepard precedents, the IJ could
only find that James had been convicted of an aggravated felony if
the government demonstrated that James' nolo plea was to one of the
subordinate offenses under section 21a-277(b) that constitutes
"trafficking." Taylor v. United States, 495 U.S. 575, 600-02
(1990); Shepard v. United States, 544 U.S. 13, 19-21 (2005). And
the government's burden must be carried by clear and convincing
evidence, see INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A); Conteh
v. Gonzales, 461 F.3d 45, 52 (1st Cir. 2006), cert. denied, 551
U.S. 1148 (2007).
2
See United States v. Savage, 542 F.3d 959, 965 (2d Cir. 2008)
(Conn. Gen. Stat. § 21a-277(b) "plainly criminalizes, inter alia,
a mere offer to sell a controlled substance," which might be made
absent possession); Mendieta-Robles v. Gonzales, 226 Fed. App'x
564, 568-69 (6th Cir. 2007) (conviction under state statute that
criminalizes "gift" of drugs is not necessarily an illicit
trafficking offense under INA); see also Matter of Davis, 20 I. &
N. Dec. 536, 541 (B.I.A. 1992) ("business or merchant nature" is
"[e]ssential" to the term "trafficking" under INA).
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Our cases apply the Taylor-Shepard framework in the
immigration context, see Campbell v. Holder, No. 11-2398, __ F.3d
__ (1st Cir. Oct. __, 2012); see also Carachuri-Rosendo v. Holder,
130 S. Ct. 2577, 2586 (2010). Within that framework, the question
is not whether the individual engaged in illicit drug trafficking
but whether the conviction was for such an offense; and if there is
uncertainty about what was the offense of conviction, the sources
on which the IJ or court may rely are limited to the "records of
the convicting court." Conteh, 461 F.3d at 53 (quoting Shepard,
544 U.S. at 23).
One such record is the charging document, Shepard, 544
U.S. at 16; Conteh, 461 F.3d at 53. Here, the government points to
the information, dated October 28, 2003, completed by a deputy
assistant state's attorney who identified the original two charges.
One is the criminal attempt charge which was dismissed as part of
the plea bargain. The other, "Possession with Intent to Sell a
Controlled Substance (Marijuana) . . . IN VIOLATION OF GENERAL
STATUTE NO. 21a-277(b)," matches almost to the word section 21a-
277(b)'s language that forbids "possess[ing] with intent to sell"
a controlled substance.
The information description is neither a shorthand
description of the entire statute, cf. United States v. Gutierrez,
446 Fed. App'x 151, 154 (11th Cir. 2011) (per curiam), nor a
generic label assigned by a computer, e.g., United States v.
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Savage, 542 F.3d 959, 963 (2d Cir. 2008), nor is it an abstract of
judgment approved merely by clerical staff, e.g., United States v.
Gutierrez-Ramirez, 405 F.3d 352, 358 (5th Cir.), cert. denied, 546
U.S. 888 (2005). James provides us no reason to doubt that
"Possession with Intent to Sell" in violation of section 21a-277(b)
is an offense to which James pled.3
The BIA--in affirming the IJ--went beyond the trial court
records and cited as well the appellate proceedings in James'
original appeal. Specifically, the Board highlighted the fact that
the Connecticut appeals court, dealing with James' own reserved
claim that his Miranda rights had not been waived, referred to the
charge as "possession of a controlled substance with intent to
sell," James, 887 A.2d at 925. The appellate court also provided
a detailed description of the events that preceded James' arrest
and the oral statements that James made to police while in custody,
which James had sought unsuccessfully to suppress and was now
litigating about on the appeal.4
3
James has argued that Connecticut law limits the use of nolo
contendere pleas as evidence in subsequent state proceedings, Town
of Groton v. United Steelworkers of Am., 757 A.2d 501, 510 (Conn.
2000), but federal law requires only proof of the conviction and
proof of such a conviction in a federal proceeding is not
controlled by state law. Molina v. INS, 981 F.2d 14, 19-20 (1st
Cir. 1992).
4
The opinion recounts that the Federal Express Corporation
informed West Hartford police that the company's drug sniffing dogs
had alerted employees to two boxes destined for delivery in that
town; that the police unsealed the boxes and found "two large Igloo
coolers containing approximately forty-eight pounds of marijuana
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Whether Shepard's reference to the records of "the
convicting court," 544 U.S. at 23, excludes records of an appeals
court decision in the same case is an unresolved question. A Ninth
Circuit decision may have thought that it did, Morales v. Gonzales,
478 F.3d 972, 983 (9th Cir. 2007), but Morales relied on BIA
precedents and the BIA subsequently said Morales "misread" those
precedents. See In re N-- A-- M--, 24 I. & N. Dec. 336, 344
(B.I.A. 2007). Anyway, the charging document establishes that
James did plead to possessing a controlled substance with intent to
sell and that is all we need decide.
We also need not consider the government's alternative
argument that, even if no aggravated felony was established, the
record showed (1) that James' conviction under section 21a-277(b)
was a conviction under a state law relating to a controlled
substance, which would render him removable, and (2) that his
eligibility for cancellation was forfeited by his failure to submit
the mandatory application. The IJ and BIA rested on the record of
conviction to establish a conviction for trafficking and so do we.
The petition for review is denied.
between them"; and that the police then arranged a controlled
delivery followed by James' arrest, interrogation and the filing of
charges against him. See James, 887 A.2d at 925-26 & n.3.
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